Janet Jackson’s wardrobe malfunction may have been embarrassing, but a panel of three federal court judges decided it wasn’t illegal.

In a decision announced Wednesday, the court said the exposure, for nine-sixteenths of one second, of Jackson's bare right breast during the live halftime performance of the National Football League's Super Bowl XXXVIII, falls under the “fleeting expletives” exception to the FCC’s indecency laws.

In the court’s 2-1 opinion — issued after its original decision was remanded from the U.S. Supreme Court — Judge Marjorie Rendell said the commission failed to justify its change to the rule that broadcasters weren’t liable for a slip of the lip — or, in this case, the slip of the bra.

“The balance of the evidence weighs heavily against the FCC’s contention that its restrained enforcement policy for fleeting material extended only to fleeting words and not fleeting images,” Rendell wrote. “We find the FCC's conclusion on this issue, even as an interpretation of its own polices and precedent ‘counter to the evidence before the agency’ and ‘so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’”

This article first appeared on POLITICO Pro at 11:02 a.m. on November 2, 2011.